Author: Tal Schreier
Bill C-23 leaves cross-border travelers vulnerable to Charter rights infringements
By Natasha Anzik
Bill C-23, the Preclearance Act, was recently amended by the Standing Committee on Public Safety and National Security and passed to the Senate on June 21, 2017. The bill establishes many new preclearance areas in Canada to be staffed by U.S. officers in order to clear travelers through customs prior to crossing the border. Canadian officials will conversely work in preclearance zones in the U.S. This bill is designed to expand border preclearance, expediting travel and the movement of goods between our two countries. Concerns have arisen with respect to the amount of power granted to U.S. officials on Canadian soil and how their actions will be held accountable under Canadian law. Although many recommendations to rectify the potentially unconstitutional aspects of the Act were made to the Standing Committee, they were insufficiently adopted in the Committee’s amendments. Consequently, if enacted in its current form, the bill will expose border crossers to many potential violations of their Charter rights.
Bill C-23 was conceived in 2016 in response to the Agreement on Land, Rail, Marine, and Air Transport Preclearance signed by the Canadian and U.S. governments. It was first tabled in the House of Commons on June 17, 2016, and was referred to the Standing Committee in March of 2017. The Asper Centre made several arguments concerning the bill’s constitutionality in its submissions to the Committee including recommendations to scale back the expanded powers granted to U.S. authorities to question, search, and possibly detain travelers entering the United States. The Asper Centre’s submission focused on three major issues: preclearance officers’ power to search and detain, the protection of digital privacy rights, and the lack of meaningful remedies.
The Asper Centre was the only organization to make an argument for increased digital rights protections in preclearance zones. Courts have consistently held that one’s expectation of privacy is significantly diminished at the border, as it is reasonably expected for travelers to be screened. Items such as luggage and purses are classified as “imported goods” and are subject to searches absent reasonable suspicion. The Asper Centre urged the Committee to classify digital devices as distinct from imported goods in order to afford these devices more protection due to the intimate and singular nature they play in our lives.
Under the current law, travelers who wish to withdraw from preclearance may do so at any time, no questions asked. Bill C-23 introduces a new process of withdrawal, outlined in s.30, which states that to withdraw from preclearance travelers must answer truthfully to any questions pertaining to their identification or reasons for withdrawing, and must comply with direction given by preclearance officers. The Asper Centre, British Columbia Civil Liberties Association (BCCLA), and the Canadian Bar Association (CBA) all raised issues with this provision’s potential to create a situation of arbitrary detention contrary to s. 9 of the Charter. Under this new legislation, travelers would not feel free to walk away from preclearance, creating a reasonable perception of detention. Each group also discussed several other rights engaged by this provision including: the right to be informed of the reasons for detention, the right to counsel, and the right to silence.
Granting U.S. officers the power to conduct strip searches was also a point of contention. S. 22 of the bill affords this power to U.S. officers if Canadian officials are either unwilling or unavailable to conduct the search. Both the BCCLA and the CBA noted that strip searches are prima facie violations of the Charter, and submitted that this power should not be granted to U.S. officers. The CBA recommended that only Canadian officers be allowed to execute strip searches.
The Asper Centre considered the power to conduct strip searches in light of the fact that there are insufficient remedies for rights violations within the bill. An unlawful strip search engages s. 8 of the Charter, but American authorities are immunized from any civil claims under the State Immunity Act unless they cause death or serious bodily injury. In order for a psychological harm to be covered it must rise to the level of nervous shock. Further, since U.S. officers are not considered servants of the Crown, Canada could not be held accountable for any rights violations. This potentially precludes remedies in the form of damages, declaratory relief, and any other means deemed appropriate under s. 24(1) of the Charter. While the BCCLA recommended clarification of how the U.S. will be held to compliance, the Asper Centre took this one step further, recommending that the full range of Charter and Canadian Human Rights Act remedies be made available against the US for actions of preclearance officers in the fulfillment of their duties.
The Standing Committee’s amendments made several clarifications to various terms used in the Act in addition to establishing a system of independent review of the Act five years after its enactment. Several additions were more pertinent to the constitutional concerns raised, such as the addition of s. 11(1) which declares that, “A preclearance officer must exercise their powers and perform their duties and functions under this Act in accordance with Canadian law, including the Canadian Charter of Rights and Freedoms, the Canadian Bill of Rights and the Canadian Human Rights Act.” While this amendment is a nod to the constitutional issues raised to the Committee, it insufficiently protects the rights of travelers. American authorities remain immunized under the State Immunity Act, therefore it would seem unlikely that any action can be taken against them unless their actions cause serious injury or death. The lack of remedial action means there is no check on the requirement outlined in s.11. As Chief Justice McLachlin has previously asserted: “a right, no matter how expansive in theory, is only as meaningful as the remedy provided for its breach.”
The other significant addition made to Bill C-23 was the addition of s. 11(2), which states, “The Minister must…provide every preclearance officer with training on the Canadian law that applies to the exercise of the preclearance officer’s powers and the performance of their duties and functions under this Act.” This was an issue that was raised by the BCCLA, which urged that the government ensure that preclearance officers be properly trained so as to prevent violations of Canadian law. The amendments do not address the issues of preclearance detention, digital privacy rights, or strip searches, however.
The rights protection concerns in preclearance areas are especially salient due to the current state of Canada-U.S border immigration. There has been consistent coverage in the media of incidents of Canadians being turned away at the border as a result of seemingly discriminatory practices. The Ontario Human Rights Commission recently released a report documenting the impact of racial profiling in a number of contexts, and stories of Canadians having digital devices searched extensively at the border are commonplace in the news. The amendments made to Bill C-23 leave many holes in the protections afforded to travelers in preclearance areas. The current trends are alarming, and this Act will only exacerbate these current issues. Most notably, the lack of remedies available for harms caused by the unlawful actions of U.S. officers leaves their increased powers unchecked, and travelers vulnerable to violations of their Charter rights. Bill C-23 was passed to the Senate on June 21, and will hopefully be met with some rational objections.
Natasha Anzik is the Asper Centre’s summer research assistant and an upcoming 2L JD Candidate at the Faculty of Law.
Rectifying the Wrongs of Indefinite Immigration Detention in Canada
by Natasha Anzik and Norman Yallen
After being continually detained for seven years, Kashif Ali was finally released earlier this year by order of Justice Ian Nordheimer of the Ontario Superior Court. The case, Ali v. Canada, outlined the details of his immigration detention, which was comprised of five years in a maximum-security prison and included 103 consecutive days in solitary confinement. The Canadian government intended to deport Mr. Ali, but his lack of documentation verifying his nationality meant that he had nowhere to go. Born in Ghana, Mr. Ali spent his childhood in different places, moving to Nigeria, Germany, the United States, and then finally to Canada at age 20. During this time he did not acquire any documents establishing his birth or nationality, and was unable to make a refugee claim when landing in Canada. Due to his criminal convictions and absence of legal status the Canadian government sought to deport him. But there was no country to deport Mr. Ali to, leaving him indefinitely detained for seven years.
According to the Canadian Border Services Agency (CBSA) there are 450 to 500 people detained under the Immigration and Refugee Protection Act at any given time. A person can be detained in Canada if they are deemed a flight risk, pose a danger to the public, or are unable to confirm their identity. Canada is one of the few western countries that has no prescribed maximum duration for immigration detentions. Detention in the EU is limited to 18 months; the U.S. has a limit of 6 months. This is also not a new issue. Canada has been called on twice by the United Nations to change its practices. Immigration detention raises serious issues with compliance to both human rights obligations and the rights guaranteed by Sections 7 and 9 of the Canadian Charter of Rights and Freedoms. These rights include both the right to life, liberty, and security of the person, and the freedom from arbitrary detention or imprisonment. These rights were especially salient in Mr. Ali’s case, and the holding that led to his release.
Mr. Ali was first found to be inadmissible to Canada in July of 1995. The Canadian government spent more than twenty years trying to deport him and was largely unsuccessful, except for his temporary return to Ghana in 1996. The CBSA claimed that Mr. Ali was uncooperative and was intentionally withholding information. They also claimed that he was inconsistent in his accounts of his upbringing, telling varying stories about his family, their whereabouts and the various aliases Mr. Ali had used while in Canada. The Immigration Division of the Immigration and Refugee Board classified him as a danger to the public and a flight risk. Despite monthly reviews of his case, the board sustained this classification, and his detention, for seven years.
Justice Nordheimer allowed Mr. Ali’s habeas corpus petition to be heard, declaring his situation to be an exceptional circumstance, therefore meeting the test for review as set in Chaudhary v. Canada (Minister of Public Safety and Emergency Preparedness). He noted the circumstances made it such that, “Mr. Ali’s detention could literally continue forever”. In replying to the Attorney General of Canada’s submission that the length of detention was not exceptional, Justice Nordheimer remarked, “If it is typical for Canada to detain persons for seven or more years for immigration purposes, then this country has a much more serious problem with its immigration process than is currently understood.” By this time Mr. Ali had spent almost twice as much time in detention than if he would have served jail-time as punishment for all of his criminal offences combined.
To Justice Nordheimer, this was unacceptable. The court rejected Mr. Ali’s flight risk status, holding that it was not demonstrated on the record. The court further rejected the submissions that Mr. Ali was being uncooperative by highlighting some of the ways in which he provided the authorities with as much information as he had, in addition to photographs and fingerprints. Nordheimer held, “To hold a person indefinitely, solely on the basis of noncooperation, would be fundamentally inconsistent with the well-established principles underlying ss. 7 and 9 of the Charter.” In the end, Mr. Ali’s Charter rights prevailed. Citizen or not, Mr. Ali was afforded equal protection under the law, a victory for all Canadians and an affirmation of the values our country strives to uphold.
Pressure for changes to the detention framework has been mounting for some time. In May 2016 more than 100 lawyers, legal scholars, and specialists called on the Ontario government to cancel the federal-provincial agreement that allows transfers of detainees to provincial criminal jails. This submission highlighted the poor conditions in these jails and the related human rights concerns. In August 2016, Public Safety Minister Ralph Goodale announced that $138 million would be spent to improve Canada’s immigration detention centres, including establishing a body to oversee the CBSA’s actions to ensure that they conform to international human rights standards. Most recently, in April 2017, the CBSA released the “New National Immigration Detention Framework”, outlining a set of intentions to change the current framework. Some of these initiatives include: increasing health care for detained individuals, lowering the number of minors, vulnerable persons and long term detainees in detention, and reducing the reliance on provincial correctional facilities for immigration detention. The framework also proposed working to implement an expanded national Alternatives to Detention (ATD) program. Two proposed programs include community supervision/guardianship and electronic supervision, which would promote the general goal of using detention as a last resort.
Hopefully these initiatives, in addition to Mr. Ali’s case, will incite change. Alvin Brown is currently challenging Canada’s immigration detention practice in Federal Court. Mr. Brown spent five years in a maximum-security provincial jail while awaiting deportation to Jamaica. Mr. Brown’s lawyer, Jared Will, contends that the practice of indefinite immigration detention is unconstitutional, arguing that a six-month limit should be imposed. In addition, Mr. Brown is seeking Charter damages as a remedy for the violations of his Charter rights. In addition to violations of his s. 7 and 9 Charter rights, Mr. Brown is claiming cruel and unusual punishment, a s. 12 violation, due to his mental health issues that persisted during his detention. Mr. Brown is seeking to recover $1,500 for each day of his incarceration. This case will mark the first time that a federal court will hear a challenge to the constitutionality of the practice of indefinite detention. It is being heard by Justice Simon Fothergill and is set to be decided sometime this summer.
Natasha Anzik is the Asper Centre’s summer research assistant and an upcoming 2L JD Candidate at the Faculty of Law. Norman Yallen is an upcoming 2L JD Candidate at the Faculty of Law.
*Sources omitted
Q&A with our Next Constitutional-Litigator-in-Residence
Why did you decide to become the next Constitutional Litigator-in-Residence at the Asper Centre? What are some of your hopes and expectations from the position?
The Asper Centre has a reputation for excellence in teaching, research, and litigation, so I was thrilled to be selected the next Constitutional Litigator-in-Residence. I have always been committed to human and constitutional rights. I also have a great passion for teaching. I could not be luckier to have a position that combines my two professional interests.
I am most looking forward to collaborating with the students, the academic advisors, and Cheryl. I hope that together we can foster a rich learning environment for everyone, myself included. I am excited to work with the students in their research.
New legislation is being enacted all the time and there are always Constitutional issue percolating through our justice system. I hope we will be able to identify interesting, meaningful constitutional litigation projects to work on during my tenure at the Centre.
What made you decide to pursue criminal law? How did you get involved in constitutional litigation?
During law school I was drawn to criminal and constitutional law. I quickly learned that many Charter issues — including privacy, freedom of expression, police powers, national security, religious freedom, and liberty interests — are litigated in criminal trials.
Most of the constitutional litigation I have done is connected to the criminal justice system: the rights of accused people and the rights of those in our prison systems. Eddie Greenspan once described defence counsel as a check on the power of the State. Constitutional litigation is one of our most effective tools for serving that role.
What was the most memorable moment in your career?
There have been many, but one of the most memorable moments was the very first case I worked on as a lawyer. I was working for Marlys Edwardh and Clayton Ruby. They were retained by a young man facing extradition to the United States on three counts of murder named Atif Rafay. The United States intended to seek the death penalty. We launched a constitutional challenge against the authority of the Canadian government to extradite a Canadian citizen to face the death penalty. The problem was that the Supreme Court of Canada had, 10 years earlier, ruled against us on a similar challenge. In essence, we were asking the Court to reverse one of its own decision. We were ultimately successful (Burns v United States of America, 2001 SCC 7). The Court prohibited the extradition of our client unless the United States assured the Canadian government that our client would not face the death penalty.
It was an unforgettable case because of the result and the amount of work that went into it. But more than that, it also taught me that although the legal community often focus on the broad legal principles that come out of constitutional cases, most constitutional principles derive from cases that are really about one person seeking a specific remedy in their unique circumstances. Burns v United States of America was about ensuring that our client was not executed. But it now also stands for a much broader Constitutional principle. Focusing on the broader policy issues without losing sight of the particular factual context that matters to the individuals involved in constitutional cases is a unique and fascinating challenge.
Do you feel your perception of the role of constitutional litigators has changed throughout your career?
Yes and no. Obviously I still have that optimistic view that constitutional litigation is a useful mechanism for defining and advancing individual and collective rights in our country. I also still see it as a very important check on the powers of government at all levels.
But I have also learned that constitutional litigation sometimes must be seen more as a “long game”. Real and lasting change within a common law system is often incremental and slow. The dialogue between the Court and government is also an important part of Constitutional litigation. It is important to be strategic about when and how to raise constitutional issues and the importance of building the right record for the remedy you are seeking.
Could you speak to some of the work you have done for the Criminal Lawyers Association?
Early in my career, I noticed that many of my female colleagues left the criminal defence bar. The Law Society noticed a similar trend and in 2005 set up a working group to address the issue. Criminal defence lawyers were outside the mandate of the Law Society’s working group. But in their report, the Law Society’s working group noted that we as female criminal lawyers face unique pressures that demand further study.
In 2012, the Criminal Lawyers’ Association took up that challenge. Marlys Edwardh and I were asked to co-chair a working group to identify challenges faced by women in defence practice. After extensive research and consultations, we presented our Report to the CLA Board in August 2013.
Based on our recommendations, the CLA created a standing committee on Women in Criminal Law and created 2 permanent positions on the Board for the co-chairs of that committee. I became the first Women’s Vice-President and co-chair of the Women’s Committee. Over the next few years, the Committee got to work implementing the recommendations of the Working Group. We commissioned an academic study on the challenges facing women in the defence bar, which was released in March 2016. We put together conferences for women in criminal law. We held networking and business development programs for women across the province. We created mentoring opportunities for women who were new to defence practice. And we lobbied the Benchers to preserve the parental leave assistance program. There is still lots of work to do and I am actively involved in efforts to improve legal aid funding to give defence lawyers financial security so they are not drawn to more stable government jobs and improve the supports available to defence lawyers who take time off to have or care for their family so they don’t have to choose between their career and their family.
As with many equity issues, as soon as you make progress on one front, new challenges come to the fore. I am now working with others at the CLA to improve diversity among our membership and our Board
Do you have any advice for students who want to practice constitutional litigation?
My main advice to students is to find work that is meaningful to you and in keeping with your own values and interests. A career in law will be demanding and stressful. If you are going to work long hours, you should be working on projects that you think are important.
If constitutional litigation is your passion, look for opportunities, big or small, to meet and work with lawyers doing the sort of cases that interest you. Take advantage of every chance to watch litigators in action and talk to them about their cases.
Obviously, The Asper Centre provides a rare opportunity for students to explore and research different areas of constitutional law. It also gives students exposure to the realities of constitutional litigation, as opposed to the study of constitutional law, and the lawyers who make it happen.
Breese Davies, selected Constitutional-Litigator-in-Residence for Fall 2017
The Faculty of Law’s David Asper Centre for Constitutional Rights is pleased to announce that lawyer Breese Davies will be the Asper Centre’s Constitutional-Litigator-in-Residence for the fall 2017.
Davies, a Toronto-based criminal defence lawyer, will be teaching constitutional advocacy in the Asper Centre clinic during the fall term. Drawing upon her extensive experience from her criminal, constitutional and administrative law practice, and her academic experience as an adjunct professor of criminology and the University of Toronto, she will mentor students on the case files that they will be working on in the clinic.
“Breese Davies brings a wealth of litigation and teaching experience to the role that will benefit the students and the Centre” says Executive Director, Cheryl Milne.
Breese Davies says, “I am honoured to be joining the Asper Centre as the Constitutional Litigator in Residence. It is a unique opportunity for me to combine my love of teaching with my passion for advocacy and constitutional law. I look forward to working with and learning from the faculty and students associated with the Centre. Despite 35 years of Charter litigation, there are still many important and emerging human rights issues to be addressed. The David Asper Centre is at the leading edge of constitutional education, research and advocacy in Canada and I am delighted to be joining their amazing team.”